2 Iowa 567 | Iowa | 1856
However reluctant the court may be, to express an opinion which permits one who has been guilty of an offence, and has violated all sense of decency, to go free, and that, too, when he may have committed an offencegreater in its degree than that with which he is charged, yet it would be a violation of our duty, to permit him to be
"We think the defendant should have had a new trial. The offence charged, lies in doing the act, “against the will ” of the other person, with force, menace, or duress. It is true, that no particular amount of force is necessary to constitute the offence, and the section, 2582 of the Code, was probably intended to -cover those cases, in which there is no force, except that which is constructive, and in which the act is accomplished, principally, by menace or duress, acting to subdue the will; but it contemplates, at least, an act against the will. If the will is subdued to submission, by menace or duress, the act is still against the will, in every fair sense; and just such a case is provided for in this section of the Code. But, in order that the defendant may be held not guilty, he is not obliged to show an affirmative act of consent, as is implied in the first instruction, asked by the prosecution, and given. That tells the jury, that if they believe the girl was asleep when the defendant came to her, that is a circumstance to be considered in making up their minds, whether there was any consent on her part. The nature of the case does not call for affirmative evidence of consent, on the one side, but of dissent and repulsion on the other. It would be difficult to conceive of a case of a female, not yet abandoned, affording less evidence of dissent, or more negative evidence of assent; and the negative evidence, in such a matter, is all important.
The fact of the girl being asleep, if believed to be a fact, is a circumstance, it is true, but one of very little or no moment, unless there were some manifestations of dissent, when she awoke. It is just as consistent with willingness, as with unwillingness, and takes its character from the subsequent events. Adultery, or seduction, would seem to be more nearly reached by the proof, than forcible defilement. The defendant should have had a new trial, and the court should have given the instruction asked by him. It is within the province of the court to instruct the jury,
Judgment reversed.
